Tài liệu Corporate Responsibility under the Alien Tort Statute pdf

§ 1350, provides: Th e district courts shall have jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United Sta

Alien Tort Statute

Developments

in International Law

VOLUME 61

Corporate Responsibility under the

Alien Tort Statute

Enforcement of International Law through

degree of doctorate in law.

Th is book is printed on acid-free paper.

Library of Congress Cataloging-in-Publication Data

Koebele, Michael.

Corporate responsibility under the Alien Tort Statute : enforcement of international law through US torts law / by Michael Koebele.

p cm — (Developments in international law ; v 61)

Includes bibliographical references.

ISBN 978-90-04-17365-1 (hardback : alk paper)

1 United States Alien Tort Claims Act 2 Government liability—United States 3 Tort liability of corporations—United States 4 Government liability (International law) 5 Tort liability of corporations I Title.

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Acknowledgments xiii

PART I INTRODUCTION Introduction 3

PART II INTERNATIONAL LAW COVERED Chapter One: Actionability Standards 17

I Introduction 17

II Possible Standards to Determine Actionable Norms 18

A Customary International Law-Standard 18

B Defi nable, Universal, and Obligatory-Standard 20

C Jus Cogens-Standard 22

D Wrongs Related to a Lawful Prize-Standard 23

E Cause of Action under International Law-Standard 26

III Th e Supreme Court’s Decision in Sosa 28

A Factual Background 30

B Interpretation Given by the Majority 31

1 Historic Authorization by Common Law 32

2 Standard of Elevated Level of Specifi city and Acceptance 36

3 Reasons for Narrow Interpretation 36

4 Exact Meaning of New Standard 37

C Minority’s Criticism of the Majority View 41

1 Th e Erie Precedent 41

2 General Constitutional Discourse 44

3 Majority’s Response to Scalia and Analysis 46

IV Conclusions 50

Chapter Two: International Criminal Law 53

I Introduction 53

II Genocide 55

A Actionability 55

B Enforceable Scope of the Defi nition 57

1 Protected Groups 58

2 Individual Acts 61

3 Mental Element: Specifi c Intent 63

III Crimes against Humanity 66

A Actionability 66

B Enforceable Scope of Defi nition 67

1 Attack on a Civilian Population 68

2 Mental Element 71

3 Individual Acts 71

4 Crime of Apartheid 72

IV War Crimes 75

A Actionability 77

B Enforceable Scope of Defi nition 79

1 Overall Requirements 79

(a) Applicability Ratione Temporis and Loci 79

(b) Existence of Armed Confl ict 80

(c) Nexus to Armed Confl ict 80

(d) Mental Element 81

2 Particular Crimes 81

(a) War Crimes against Persons 81

(b) War Crimes against Property 84

(c) Enforcement of International Humanitarian Law in General? 84

V Conclusions 86

Chapter Th ree: Civil and Political Rights 89

I Introduction 89

II Th e Right to Life 91

A Actionability 91

B Enforceable Scope of Defi nition 92

1 Extra-Judicial Killing 92

2 Death Penalty 94

(a) Most Serious Crimes 96

(b) Minimum Fair Trial 97

(c) Nulla poena sine lege 97

(d) Competent court 97

III Torture 98

A Actionability 98

B Enforceable Scope of Defi nition 100

IV Cruel, Inhuman or Degrading Treatment 101

A Actionability 102

1 Implant from Domestic Law to Increase Determinateness 104

2 Jurisprudence of New Tribunals as Guiding Force 106

3 Result 106

B Enforceable Scope of Defi nition 107

V Arbitrary Detention 107

A Actionability 107

1 Courts’ Approach in the Filartiga Era 108

2 Sosa Decision on Arbitrary Detention 108

B Enforceable Scope of Defi nition 109

VI Right to Informed Consent to Medical Experimentation 110

A Actionability 110

1 Factual Allegations in Abdullahi v Pfi zer 110

2 Pfi zer Reasoning 112

(a) Nuremberg Code 112

(b) Declaration of Helsinki and CIOMS Guidelines 114

(c) Th e Second Sentence of Article 7 of the ICCPR 115

(d) Outcome 115

B Enforceable Scope of Defi nition 115

VII Freedom of Expression 116

A Actionability 116

B Enforceable Scope of Defi nition 119

VIII Conclusions 120

Chapter Four: Labor Standards 123

I Introduction 123

II Core Labor Standards 124

A Forced Labor 125

1 Actionability 125

(a) Cases Relating to World War II 126

(b) Unocal Case 131

2 Enforceable Scope of Defi nition 132

B Prohibition on Discrimination 133

1 Actionability 133

2 Enforceable Scope of Defi nition 134

C Prohibition on Child Labor 134

D Freedom of Association 141

1 Reluctance towards Recognition as Actionable 141

2 Indirect Enforcement of Freedom of Association 146

III Other Labor Standards 147

IV Conclusions 149

Chapter Five: Environmental Destruction 151

I Introduction 151

II International Environmental Law 152

A Amlon Metals and Stockholm Principle 21 153

B Aguinda and Rio Principle 2 156

C Beanal and General Principles of Law 160

D Sarei v Rio Tinto Plc 165

1 Factual Background 165

2 Principle of Sustainable Development 166

3 UNCLOS 166

III Environment-Related Human Rights Law 167

A Sarei: Linking Human Rights to Environment 168

1 Soft Law Developments 168

2 Right to Health 169

3 Right to Life 171

4 Response of Judge Modrow 175

5 Analysis 176

B Flores: Second Circuit’s Decision on Egregious Standard 179

1 Factual Background 180

2 District Court Decision 181

3 Court of Appeals 181

(a) General Human Rights Argument 181

(b) Egregious Approach in Particular 184

C Procedural Argument? 185

IV Environment-Related International Humanitarian Law? 186

V Conclusions 190

PART III CORPORATE PARTICIPATION COVERED Chapter Six: Application to TNCs 195

I Introduction 195

II Presbyterian Church of Sudan 196

A Previous Ignorance of Issue 197

B Partial Subjectivity of TNCs under International Law 200

III Agent Orange 205

A Torts Law Policy Argument 205

B Systematic Argument from TVPA 206

C Historic Argument 207

D Fragmentary Nature of International Law 208

IV Guidance by Sosa? 208

V Conclusions 209

Chapter Seven: Norms that Can Be Violated Only by State Actors 211

I Introduction 211

II Th e State Action Requirement 212

III Color of Law-Jurisprudence as Litmus Test 214

A Justifi cation of Incorporation of Color of Law-Jurisprudence 214

1 Th e Forti Reference to 42 U.S.C § 1983 214

2 Kadic Precedent of the Second Circuit 216

3 Analogy to TVPA since 1992 217

4 Wording of ATS Itself 217

5 Better Alternative of International Standards? 217

(a) Inadequacy of Regulation in TNC-as-Main Perpetrators Constellations 218

(b) Remaining Need to Determine Individual and/or Corporate Responsibility 222

B Domestic Tests as Applied to Determine State Action 223

1 Joint Action Approach 224

2 Nexus Approach 228

3 Symbiotic Relation Approach 230

4 Public Function 232

5 Proximate Cause Test 233

IV Practical Abandonment of Violation of International Law-Requirement? 238

A Host State Responsibility by Omission 239

B Home State Responsibility 240

V Impact of Sosa and Post-Sosa Developments 242

VI Conclusions 243

Chapter Eight: Norms that Can Be Violated by Everyone 245

I Introduction 245

II Recognized Exceptions 245

A War Crimes and Genocide 246

B Crimes against Humanity 249

C Forced Labor 250

D Aircraft Hijacking 250

E Human Rights Violations as Part of Genocide or War Crimes 251

III Participation in the Violation 252

A Legislative Gap and Methodology for Judicial Gap-Filling 252

1 Law-Making Authority 252

2 Branch of Law from Which Rules Are Derived 253

3 Methodology 256

B Recognized Modes of Participation 257

1 Conspiracy 257

2 Command Responsibility 259

3 Aiding and Abetting Liability 259

(a) Mehinovic v Vuckovic 261

(b) Doe v Unocal 263

(c) Presbyterian Church of Sudan Case 265

(d) Apartheid Case 269

(e) Cabello and Aldana 274

IV Conclusions 275

PART IV DEFENSES AND LIMITATIONS Chapter Nine: Corporate Shield 279

I Introduction 279

II Bowoto Case: Liability for Acts of Subsidiaries 280

A Factual Background and Context 280

B Cornerstone Concept of Limited Liability 281

C Exceptions and Bypasses to the General Rule 285

1 Piercing the Corporate Veil 285

2 Application of Enterprise Principles to ATS? 291

3 Agency Principle 296

4 Ratifi cation 300

III Sinaltrainal Case: Liability for the Acts of Business Partners 300

A Factual Background and Context 300

B Plaintiff s’ Strategy 301

C Judge Martinez’s Reasoning 301

IV Conclusions 302

Chapter Ten: Lack of Personal Jurisdiction 305

I Introduction 305

II Total’s Reliance on Lack of Personal Jurisdiction 306

A Specifi c Jurisdiction 309

1 Purposeful Availment 309

2 Relation between Claims and Contacts 310

3 Reasonableness 311

B General Jurisdiction: Agency Test for Jurisdiction 311

III Th e Lenient Agency Test in Wiwa 315

A Factual Background and Context 315

B Agency Analysis 316

C Incidential to Stock Listing? 317

D Fairness Test 318

E Result 321

IV Conclusions 321

Chapter Eleven: Forum non Conveniens 323

I Introduction 323

II Th e Foreign Court as an Available and Adequate Alternative 327

A Availability of the Foreign Court 327

1 Dismissal Subject to Conditions 328

2 Retaliatory Legislation 329

B Adequacy of the Forum 330

III Balancing of Private and Public Interests 334

A Jota Case 334

1 District Court Approach 334

(a) Private Interest Considerations 334

(b) Public Interest Considerations 337

2 Appeal Decision 338

B Wiwa v Royal Dutch Petroleum Co 340

1 Residency 341

2 Policy Interest 341

3 Relative (In-)Convenience 342

4 Legal Implications 342

IV Conclusions 344

Chapter Twelve: Nonjusticiability Issues 347

I Introduction 347

II General Inapplicability of Nonjusticiability Doctrines in ATS Cases 348

A Early Case Law 348

1 Act of State Doctrine 348

2 Political Question Doctrine 349

3 Comity Doctrine 353

B Political Context 355

III Emerging Limits of Justiciability 356

A Reparation Treaties and Executive Agreements 356

B War-Related Claims? 358

1 Sarei v Rio Tinto 359

2 Mujica v Occidental Petroleum Corp 367

3 Agent Orange Litigation 369

IV Guidance Given in Sosa 371

V Conclusions 372

Chapter Th irteen: Duress 375

I Introduction 375

II Reliance on Duress in the Unocal Case 375

A Factual Background and Context 375

B Unocal’s Defense Strategy 377

C Judge Lew’s Reading of Industrialists’ Post War Trials 378

1 Defense under the Statute of the International Criminal Court 378

2 ICTY Holding on Duress 380

3 Reasoning of the Industrialists’ Trials 382

D Consequences for the Unocal Case 388

III Rejection of Duress in the Agent Orange Case 389

A Factual Background 389

B Commercial Order Is Insuffi cient 390

IV Conclusions 391

Bibliography 393

Index 409

Th is book was accepted by the Faculty of Law of the University of Hamburg as the dissertation for my doctorate in law in the spring of 2008 It was updated

to its current form for publication

I owe special thanks to Prof Dr Dr h.c Rüdiger Wolfrum, professor of international law at the University of Heidelberg, director of the Max Planck Institute for Comparative Public Law and International Law and judge at the International Tribunal for the Law of the Sea, for his supervision and timely review of my submissions and his support when I was a senior research fellow at the Max Planck Institute for Comparative Public Law and Inter-national Law in Heidelberg I am likewise grateful to Prof Dr Stefan Oeter, professor of international law at the University of Hamburg and director of the Institute for International Aff airs, for reviewing the dissertation as the second supervisor

Th e research topic as such dates back to my studies at the Law School of the University of Michigan in Ann Arbor where Prof Robert Howse and Prof J Christopher McCrudden triggered my idea of regulating multinational enterprises through torts law

I wrote most of the book during my time at the Max Planck Institute for Comparative Public Law and International Law and I profi ted from countless lunches, meetings and other events where I received and exchanged comments, ideas and suggestions from friends and colleagues who are quite numerous

to mention but to whom I am equally grateful I also express heartfelt thanks for the logistic support provided by the Max Planck Institute’s library and secretariat

I also thank my wife, Mylin Sapiera-Koebele, for her love, encouragement, comments and editorial support

Lastly, I am very fortunate to have the support and love of my family in writing this book I am honored to be the father of Aurel Miguel and the son

of Armin and Margot Koebele

Introduction

I

Th e Alien Tort Statute (“ATS”)1 was fi rst enacted as part of the Judiciary Act

of 1789 Th e Judiciary Act was the fi rst statute of the newly-founded United States of America and provided for the establishment of the judiciary on the federal level.2 Th e direct reasons for the inclusion of the ATS are uncertain since the legislative record on ATS is completely silent.3 However, it is likely that its enactment was connected to the mistreatment of foreign ambassa-dors and the occurrence of piracy.4 At the time, the United States was still a weak and largely unproven nation – with the notable exception of the war

of independence – which was dependent on the goodwill of the European powers and which wanted to take its adequate place in the family of civilized nations.5 Aft er its inclusion into the Judiciary Act, ATS largely fell into disuse for almost two centuries.6

Today, ATS, as codifi ed in 28 U.S.C § 1350, provides:

Th e district courts shall have jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.7

Th us, there are two alternatives under ATS: (a) a violation of the law of nations

or (b) a violation of a treaty of the United States.8 Under the fi rst alternative, three requirements must be met: (a) an alien, (b) a tort, (c) and a breach of

1 See generally Alexander Abel, Das Alien Tort Statute nach der Entscheidung des US Supreme

Court in der Sache Sosa v Alvarez-Machain – ein US-amerikanischer Weg zum Schutz der Menschenrechte (2007) Th e ATS is sometimes also referred to as “Alien Tort Claims Act”.

2 See infra Chapter One: Actionability Standards.

3 Id.

4 Id.

5 Id.

6 Id

7 Alien’s Action for Tort, 28 U.S.C § 1350 (2004) See U.S Const art I, § 8, cl 10, which

grants Congress the power to “defi ne and punish off enses against the law of nations.”

8 Th e second alternative has remained redundant ever since See Sarah Joseph, Corporations

and Transnational Human Rights Litigation 53–54 (2004).

customary international law.9 Th e fi rst element is obvious while the second one is typically fulfi lled if the third – a breach of international law – is present For example, a rape amounting to torture under international law is legally categorized as battery under torts law10 or the pollution of a river on which indigenous people depend for their subsistence is a destruction of property.11

Accordingly, while the fi rst two elements are usually met, the last one poses signifi cant diffi culties in the practical concrete application of ATS

Th e modern era history of the ATS begins in 1980 with Filártiga v

Joel Filártiga, a well-known critic of the dictator Alfred Stroessner who was

at the time in power in Paraguay.13 Th ey, with the support of human rights activists, brought a complaint in New York alleging that defendant Americo Noberto Peña-Irala, a former Paraguayan police offi cer, tortured the plaintiff s’ brother and son to death in order to stop public criticism of the Stroessner Regime by Joel Filártiga.14

On the merits, aft er the case was dismissed on fi rst instance, the Court of Appeals for the Second Circuit declared that international law prohibits the use of torture and accordingly, the Filártigas’ claims were properly brought under ATS.15 It explained that claims brought under ATS is not restricted to violations of 18th century law of nations but expand to present-day customary international law.16 Finding that the modern-day torturer as “an enemy of all mankind” was analogous to the recognized historic ATS paradigms, the Second Circuit concluded that ATS provided jurisdiction for the Filártigas’ claims

Th e decision was largely followed by other federal courts throughout the country As a consequence, any alien could sue for a violation of present international law which is comparable to the historic paradigms.17 Over the years, courts assumed jurisdiction over numerous claims, including genocide; war crimes; summary execution; forced disappearance; slavery; and prolonged and cruel, inhuman, and degrading treatment.18

9 On the treaty alternative, see Beth Stephens et al., International Human Rights Litigation in

US Courts 215–227 (2008).

10 See infra Chapter Th ree: Civil and Political Rights.

11 See infra Chapter Five: Environmental Destruction.

12 630 F.2d 876 (2d Cir 1980) See infra Chapter Th ree: Civil and Political Rights.

18 For a concise summary of the development of litigation under the ATS, see Daniel Diskin,

“Th e Historical and Modern Foundations for Aiding and Abetting Liability under the Alien

Tort Statute”, 47 Ariz L Rev 805, 815–18 (2005).

In the fi rst wave of litigation, more than 100 cases were fi led, mainly against former dictators and military offi cials who fl ed to the U.S aft er the respective governments in their home countries had been removed.19 However, although damages were awarded in many instances, plaintiff s were oft en unable to col-lect money judgments, and the litigation was more of a symbolic nature.20

As a consequence of the case law developed in the aft ermath of Filártiga,

Congress passed the Torture Victim Protection Act (“TVPA”) in 1991 which was signed into law by President Bush in 1992.21 It entails a 10-year statute

of limitation and requires the exhaustion of local remedies.22 As to liability, the TVPA provides as follows:

Any individual who, under actual or apparent authority, or under the color of law, of any foreign nation

subjects an individual to torture shall, in a civil action, be liable for damages to that individual; or

subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual’s legal representative, or to any person who may be

a claimant in an action for wrongful death.23

Th e legislative history of the TVPA is replete with expressions of support for

the Filártiga decision and the case law based on it It highlights the role of U.S

courts in providing a legal forum for outrageous violations of human rights regardless of where they are committed Th e legislative reporter declares:

Judicial protections against fl agrant human rights violations are oft en least eff tive in those countries where such abuses are most prevalent A state that practices torture and summary execution is not one that adheres to the rule of law

ec-Th e Torture Victim Protection Act would respon[d] to this situation.24

19 On the fi rst wave of litigation, see generally Alfried Heidbrink: Der Alien Tort Claims Act (28 USC § 1350): Schadenersatzklagen vor US-amerikanischen Gerichten wegen Verletzungen

des Völkerrechts (1989).

20 See David Weissbrodt et al., International Human Rights: Law, Policy, and Process 816–17 (2001); Beth Stephens, “Taking Pride in International Human Rights Litigation”, 2 Chi

J Int’l L 485 (2001) Th e Marcos case is an exception In re Estate of Ferdinand Marcos,

Human Rights Litigation, 25 F.3d 1467 (9th Cir 1994); Trajano v Marcos (In re Estate of Ferdinand E Marcos Human Rights Litigation), 978 F.2d 493 (9th Cir 1992)

21 Pub L No 102–256, 106 Stat 73 (1992) (codifi ed at 28 U.S.C § 1350 note) See Stephens

et al., supra note 9, at 75–88.

See Beth Stephens & Michael Ratner, International Human Rights Litigation in US Courts

25–29 (1996).

22 Id.

23 Id.

24 H.R Rep No 102–367, at 3 (1992).

Th e Supreme Court addressed claims under ATS once in 2004 in Sosa v

of ATS to lower courts

II

In 1995, the Court of Appeals for the Second Circuit held in another landmark

decision, Kadic v Karadzic26 which involved atrocities committed during the disintegration process of the former Yugoslavia, that ATS’s scope of appli-cation is not limited to State actors but also applies to private actors Th is decision triggered a second wave of litigation under ATS in which (foreign) victims of human rights abuses, with the support of human rights activists,

fi led cases against transnational corporations (“TNCs”), which, in one way or another, are connected to human rights abuses in the countries where they are doing business.27 Defendants in these lawsuits include the oil companies Chevron Texaco, Occidental, Royal Dutch Shell, and Talisman and the mining companies Freeport-McMoran, Newmont, Rio Tinto, and the Southern Peru Copper Corporation; other prominent defendants are Coca-Cola, Fresh Del Monte Produce, Th e Gap, Daimler-Chrysler, Ford, DynCorp, and Pfi zer.28

Approximately half of the post-Sosa ATS cases involve TNC defendants

Many of the cases against TNCs which have not been dismissed are still at a relatively preliminary stage of the litigation Some of those which are pending survived early motions to dismiss.29 Th ese decisions form the major basis of the research undertaken in this book Th us, many decisions (with TNCs as defen-dants) presented throughout this book refl ect only the respective preliminary stage of a given case and are not ultimately binding or strictly determinative

for the fi nal ruling Interestingly, the fi rst two post-Sosa appellate court

deci-sions reversed the dismissal of ATS cases against TNC defendants.30

25 124 S Ct 2739 (2004).

26 70 F.3d 232, 239 (2d Cir 1995), cert den., 116 U.S 2524 (1996).

27 See Anja Seibert-Fohr & Rüdiger Wolfrum, “Die einzelstaatliche Durchsetzung tlicher Mindeststandards gegenüber transnationalen Unternehmen”, 43 ArchVR 153 (2005);

völkerrech-Luis Enrique Cuervo, “Th e Alien Tort Statute, Corporate Accountability, and the New Lex

Petrolea”, 19 Tul Envtl L.J 151 (2006).

28 For details, see infra Chapter Th ree; Civil and Political Rights; Chapter Four: Labor Standards; Chapter Five: Environmental Destruction; Chapter Six: Application to TNCs.

29 See Federal Rules of Procedure § 12(6)(b)

30 Aldana v Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242 (11th Cir 2005); Sarei v Rio

Tinto, 487 F.3d 1193 (9th Cir 2007).

In one prominent case involving a TNC, Doe v Unocal Corp., which

involved claims of forced labor in the construction of a natural gas pipeline

in Myanmar pursued under a joint venture by Unocal with the military ernment of Myanmar, litigation resulted in a partial success for plaintiff s

gov-In December 2004, the parties settled out of court Th e specifi c terms of the agreement are being held confi dential However, the amount of around $30 million as monetary compensation has been suggested.31

Th e background of the second wave of litigation is that on the international plane, the regulatory response to TNC activity has been largely ineff ective or even absent TNCs do not belong to the subjects of international law.32 Neither international treaties nor customary international law directly impose legal obligations on TNCs Accordingly, human rights obligations are not binding

on TNCs By virtue of institutions in the fi eld of economics and trade, such

as the International Bank for Reconstruction and Development, the tional Monetary Fund, and the World Trade Organization, and a network of bilateral investment treaties protecting the rights of investors, international law enables TNCs to operate on a worldwide scale without, however, providing

Interna-a regulInterna-atory frInterna-amework for such business Interna-activities

Instead, the last decades have witnessed the emergence of soft initiatives of business codes of conduct, i.e., non-binding sets of rules to guide behavior and decisions of TNCs in respect of social and environmental issues, such as the International Labor Organization (“ILO”) Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy,33 the United Nations (“UN”) Global Compact,34 the Organization for Economic Cooperation and Development (“OECD”) Guidelines of Principles concerning Multinational Enterprises,35 the Norms on the Responsibility of Transnational Corporations and Other Business Enterprises with Regard to Human Rights adopted by the

31 Diskin, supra note 18, at 808 See Marc Lifsher, “Unocal Settles Human Rights Lawsuit over Alleged Abuses at Myanmar Pipeline”, L.A Times, available at http://www.globalpolicy

.org/intljustice/atca/2005/0322unocalsettle.htm (accessed 11 September 2006).

32 See infra Chapter Six: Application to TNCs.

33 See ILO, Tripartite Declaration of Principles concerning Multinational Enterprises and Social

Policy, 279th Session, Geneva, adopted in November 1977 and amended in November 2000,

available at http://www.ilo.org/ilolex/cgi-lex/pdconv.pl?host=status01&textbase=iloeng&d

ocument=2&chapter=28&query=%28Tripartite+Declaration+of+Principles+concerning+ Multinational+Enterprises%29+%40title+&highlight=&querytype=bool&context=0 (accessed

17 July 2006).

34 See UN Global Compact, Ten Principles, available at http://www.unglobalcompact.org/

AboutTh eGC/Th eTenPrinciples/index.html (accessed 17 July 2006).

35 See OECD, Policy Brief: Th e OECD Guidelines for Multinational Enterprises (2001), fi rst

issued in 1976 and revised in 2000, available at http://www.oecd.org/dataoecd/12/21/1903291

.pdf (accessed 17 July 2006).

UN Sub-Commission on the Promotion and Protection of Human Rights,36

and the Global Sullivan Principles on Corporate Social Responsibility.37 While these informal nonbinding enforcement mechanisms have shown some eff ects

on corporate governance and leadership and may off er a real way forward

in addressing community concerns, they do not constitute a legal substitute against TNCs which persist in pursuing business profi ts regardless of the impacts upon local populations, environment, and workers While useful in many respects, their inherent defi ciency – the fact that they are not manda-tory38 – impedes making any real dent on giant, mass scale employer-TNCs, the mere size, power, and reach of which cry out for binding checks and balances in the absence of constant media coverage From this perspective, TNC liability under the ATS merely fi lls a gap which is not adequately fi lled

36 UN Doc E/CN.4/Sub.2/2003/12Rev.2 (2003) However, see Res 2004/116 of 20 April 2004 and Res 2005/69 of 20 April 2005 of the UN Commission on Human Rights which still call for more action in the fi eld and thereby limit the impact of the previous work of the commission.

37 Available at http://www.thesullivanfoundation.org/gsp/principles/gsp/default.asp (accessed

17 July 2006) See Christopher McCrudden, “Human Rights Codes for Transnational porations: What Can the Sullivan and MacBride Principles Tell Us?”, 19 Oxford J Legal

Cor-Stud 167 (1999).

38 Transparency and consumer pressure, suffi ciently raised, can have a real impact without hard law enforcement mechanism though.

39 As to the application of American law to TNCs (other than ATS), this part draws heavily

on research undertaken by University of Michigan Law Professor Reuven S Avi-Yonah,

“National Regulation of Multinational Enterprises: An Essay on Comity, Extraterritoriality,

and Harmonization”, 42 Colum J Transnat’l L 5 (2003).

40 Cf Phillip I Blumberg, Th e Multinational Challenge to Corporation Law 63 (1993); Phillip

I Blumberg, “Th e Increasing Recognition of Enterprise Principles in Determining Parent

and Subsidiary Corporation Liabilities”, 28 Conn L Rev 295, 295–96 (1996).

can be implemented either by harmonization or by extraterritorial tion While corporate law in many, if not all, developed countries favor the entity approach as a general rule, the enterprise approach has been adopted

applica-in some fi elds of law where the legalistic entity approach led to suboptimal results under the policies pursued by a legislation or other body of law One famous example is taxation In tax law, it is hornbook wisdom in American tax law that separate accounting and taxation is not feasible in respect of TNCs and the only viable approach is the enterprise approach taxing TNCs

on a worldwide basis with a formulary apportionment.41 One other example

is corruption Th e U.S adopted the Foreign Corrupt Practices Act (“FCPA”)

in 1977,42 which applies to corporations, citizens, and residents and extends

in particular to corrupt practices abroad.43 Antitrust is another body of law in which extraterritoriality is practiced in order to satisfy the purpose of

the underlying statute In the well-known decision United States v

Alumi-num Company of America, the Supreme Court held that a cartel formed in

Canada could be subject to American antitrust law if it had “eff ects” on U.S markets.44

As to ATS, the point can be made that just like in 1789 when there was a need to regulate U.S citizens for mistreatments of foreign ambassadors or other violations of international law,45 today, a similar demand exists for the regulation of (U.S – and others with strong ties to the U.S markets) TNCs operating on a worldwide scale, the business activities of which result in the mistreatment of people within the sphere of infl uence of such TNCs, in par-ticular, but by no means limited to, indigenous peoples in other countries

41 See Reuven S Avi-Yonah, “Th e Rise and Fall of Arm’s Length: A Study in the Evolution of

US International Taxation”, 15 Va Tax Rev 89 (1995).

42 15 U.S.C § 78dd-1, 2 (1977).

43 For a history of the FCPA, see generally Alejandro Posadas, “Combating Corruption under International Law”, 10 Duke J Comp & Int’l L 345 (2000) On the adverse economic eff ects

of corruption, see generally Susan Rose-Ackerman, Corruption and Government: Causes,

Consequences and Reform (1999).

44 302 U.S 230 (1937) For more recent cases, cf Hartford Fire Ins Co v California, 509 U.S

764 (1993); Timberlane Lumber Co v Bank of America, N.T., 549 F.2d 597 (9th Cir 1976)

Th ereaft er, the constant expansion of American antitrust law to extraterritorial behavior has

caused serious frictions with U.S trading partners See, e.g., United Kingdom: Protection of

Trading Interests Act 1980 and Exchange of Diplomatic Notes concerning the Act, 21 I.L.M

834 (1982) Today, European antitrust law follows the example of its American counterpart,

see, e.g., Case T-36/91, Imperial Chem Indus (ICI) v Comm’n, 1995 E.C.R II-1847; Case

89/85, Ahlstrom v Comm’n, 1988 E.C.R 5193; Case T-102/96, Gencor Ltd v Comm’n, 1999 E.C.R II-753 See generally Alison Jones & Brenda Sufrin, EC Competition Law (2004).

45 For an example of an 18th century extra-territorial application of ATS, see infra Chapter

One: Actionability, text accompanying n 100 (U.S citizens taking part in military operations overseas in support of the French revolutionary cause)

Not surprisingly, since the start of the second wave of ATS litigation against TNCs, it has come under severe criticism from the business community However, even under an economic theory of law, the liability of TNCs under ATS is a desirable result Torts law, of which ATS forms part of, strives at the imposition of the fi nancial burden on the natural or legal person who was in the best suitable position to prevent the harm and injuries sustained In this manner, torts law provides an incentive to reduce the risk of the occurrence

of harm and damage in the future and aims at maximizing the overall societal wealth.46 Th e imposition of liability will increase the sensibility of TNCs to human rights violations and deter them from entering into joint ventures, making general investment, or doing business in countries which have low

or non-existent implementation of the rule of law One may argue that the award of damages may discourage investment by TNCs in the Th ird World and consequently, may do more harm than good to the cause of human rights and sustainable development While this raises a valid point, it does not overturn the result Given the degree and pace of globalization and the necessity for global players to be present in all continents, it seems unlikely that foreign direct investment will decrease as a result of TNC accountability under ATS Rather, TNCs will focus and invest in countries which, while not frontrun-ners of the human rights development, refrain at least from a widespread and constant use of human rights violations as a means of internal policy.47 Th is side eff ect is particularly desirable It favors countries which maintain a higher level of human rights implementation and provides compliance incentives for countries to further improve the treatment of their own citizens

III

Th is book determines whether and to what extent TNCs are regulated by ATS.48

It consists of four parts:

46 For the notion of shaping the law of torts in order to increase economic effi ciency and overall

wealth, see generally William M Landes & Richard A Posner, Th e Economic Structure of Tort Law (1987).

47 Moreover, human rights by defi nition focus exactly on the individual and his or her tion from the will of the majority or government In simple words, if one takes human rights seriously, one cannot close his or her eyes to rapes, forced labor, extrajudicial killings, and brutal torture It is the very purpose of human rights to prevent the sacrifi ce of individuals

protec-in favor of the collective.

48 Accordingly, throughout this book international law is only analyzed and presented to the extent it is relevant for the interpretation of ATS.

Part I on “Introduction” provides a general overview of ATS, its human rights litigation, and the research undertaken in this work.

Part II on “International Law Covered” consists of fi ve chapters Part II deals with the issue of what kind of international law norms fall within the scope of ATS’s reference to international law, i.e., which international norms are actionable and how they can be determined

Chapter One on “Actionability Standards” starts with the analysis of the proper standard to determine the international law norms which are actionable under ATS Over the years, a bundle of tests to determine what kind of norms

of international law can be implemented through ATS have been advanced

Th e recent decision of the Supreme Court in Sosa v Alvarez-Machain49 has also off ered some guidance in this respect

Chapter Two on “International Criminal Law” examines the actionability of international criminal law under ATS Various TNCs are accused of infringe-ments of international criminal law, in particular, in respect of oil operations

in Nigeria and Southern Sudan Th e case against Royal Dutch/Shell is the most prominent of these cases

Chapter Th ree on “Civil and Political Rights” looks at the actionability of civil and political (human) rights under ATS Th is is the fi eld in which ATS

started with the groundbreaking Filartiga decision of the Court of Appeals

for the Second Circuit and where human rights litigation celebrated one of its biggest successes In most cases against TNCs, various human rights claims are raised

Chapter Four on “Labor Standards” evaluates the actionability of labor standards under ATS In many ATS cases relating to South America, plaintiff s contend that the TNC concerned took advantage of the unstable political and legal situation in the respective countries to suppress workers’ rights For example, the media coverage of Coca-Cola’s bottling companies’ practices has been extensive

Chapter Five on “Environmental Destruction” analyzes the possibility of constructing ATS as an enforcement tool for establishing a minimum standard

of ecological behavior for TNCs doing business abroad While the frequently used term “race to the bottom” may overstate the problem, it seems clear that TNCs in countries where environmental law is not actually applied in practice are able to externalize costs on local populations

Part III on “Corporate Participation Covered” consists of three chapters It analyses whether and what kind of corporate contribution to a given violation

of international law suffi ces to incur corporate liability

49 Supra note 25.

Chapter Six on “Application to TNCs” deals with the fi rst issue of whether corporate misconduct is actually covered by ATS in the fi rst place Th e back-ground of such suggestion is the prevailing view in international law that TNCs are not subjects of international law, cannot infringe it, and therefore, cannot

be held responsible under ATS which explicitly refers to international law.Chapter Seven on “Norms that Can Be Violated Only by State Actors” acknowledges that international law still largely applies exclusively to States

Th erefore, for most norms of international law, TNCs can only be held liable under ATS if they cooperate with State offi cials to whom such norms apply directly Accordingly, the issue is the necessary connection between the gov-ernment offi cials and TNCs’ business activities in respect of a given violation

of international law to hold TNCs responsible In ATS litigation, courts have dealt with this issue under the heading of “required state action”

Chapter Eight on “Norms that Can Be Violated by Everyone” focuses on international law norms which apply to any actor whether it is a State or a private actor, i.e., mostly international criminal law Here, the issue posed is

as to modes of participation of a corporation in an international wrongdoing resulting in individual liability for a corporation Since ATS’s wording is silent

on the issue, a methodology to develop such rules must also be developed.Part IV on “Defenses and Limitations” consists of fi ve chapters It addresses possible defenses and limitations available to TNCs in ATS litigation.Chapter Nine on “Corporate Shield” presents the defense of corporate veil and limited liability Th e background of the defense is that, although economi-cally a TNC is conducting one business operating on a worldwide scale and strategy, legally however, a TNC consists of a group of separate corporations headed by one or more parent company(ies) Th is legal fragmentation may render it diffi cult for plaintiff s in ATS cases to hold the parent company liable which has the deeper pockets as opposed to the subsidiary in the country where the infringements of international law typically occurred

Chapter Ten on “Lack of Personal Jurisdiction” addresses the parallel problem (of corporate shield) on a civil procedural level It is oft en diffi cult

to establish personal jurisdiction over a foreign subsidiary or a foreign ent company

par-Chapter Eleven on “Forum Non Conveniens” explores the impact and scope

of the doctrine of forum non conveniens in ATS cases against TNCs One

main issue here is whether ATS’s purpose of providing a forum for victims

of human rights violations is a factor to be taken into account by courts in the process of balancing private and public considerations under ordinary

forum non conveniens jurisprudence.

Chapter Twelve on “Nonjusticiability Issues” evaluates the availability of nonjusticiability doctrines, such as political question doctrine or act of state doctrine, in ATS actions against TNCs In this respect, ATS critics argue that

extensive litigation under ATS has the potential to undermine the foreign relations of the United States which has been assigned to other branches of the government.

Chapter Th irteen on “Duress” discusses the possible resort by TNCs to the defense of duress in ATS claims In very limited instances in which the pres-sure on TNCs from oppressive governments becomes excessive, the defense may be available to TNCs in ATS cases

IV

Finally, even if business lobbyists further amplify their campaign against ATS as applied to TNCs50 and succeed in a total repeal of ATS by Congress51

without any substitute, and all litigation thereunder is barred from that time

on, or a bench of newly appointed Supreme Court Justices adopts a narrow reading of ATS which renders corporate human rights litigation diffi cult or impossible under ATS, litigation in U.S forum will not stop as long as its plaintiff -amicability is protracted and the U.S legal, economic, political, and military hegemony sustain Th e availability of juries and the possibility of extensive discovery combined with the option of punitive damages make the U.S a preferable legal forum for any plaintiff 52 Th e human rights community will attempt and fi nd other paths to compensate for the lack of a functioning legal order elsewhere in the world, e.g., through reliance on ordinary torts law,

50 Compared to the fi rst wave of litigation, the second wave has provoked heavy opposition from the business community within and outside the United States On the lobbying eff orts

by various infl uential business associations against ATS, see Paul R Dubinsky, “Justice for

the Collective: Th e Limits of the Human Rights Class Action”, 102 Mich L Rev 1152, 1186

(2004) involving the International Chamber of Commerce and the U.S Council for

Inter-national Business; Marjorie Cohn, “Human Rights: Casualty of the War on Terror”, 25 T

Jeff erson L Rev 317, 330 (2004) on the National Foreign Trade Council; Terry Collings worth,

“Separating Fact from Fiction in the Debate over the Application of the Alien Tort Claims

Act to Violations of Fundamental Human Rights by Corporations”, 37 U.S.F L Rev 563,

564 (2003) on USA Engage and the National Foreign Trade Council See also Brief for the Nat’l Foreign Trade Council et al as Amici Curiae Supporting Petitioner, Sosa v Alvarez-

Machain, 542 U.S 692, 124 S Ct 2739 (2004) (No 03–339).

51 On 18 October 2005, Senator Diane Feinstein introduced the Alien Statute Reform Act Aft er fi erce criticism from the human rights community, she withdrew her draft within less than one week Her proposal restricted liability to direct participants and required a specifi c

intent to commit the alleged tort For details on the proposal, see Anthony Sebok,

“Sena-tor Feinstein’s Now-Withdrawn Statute Limiting Non-Citizens’ Tort Claims”, 31 October

2005, available at http://writ.lp.fi ndlaw.com/sebok/20051031.html (accessed 16 September

2006).

52 On the advantages of the U.S legal forum, see Chapter Eleven: Forum Non Conveniens.

etc It is clear that as long as great injustices blossom with impunity in this world, the pressure will not disappear.53 Moreover, so far, corporate human rights litigation under ATS as such (without ultimate award for plaintiff s) combined with protests and consumer campaigns has shown positive eff ects

on TNCs veering away from a “business as usual” attitude in areas with a potential for severe human rights violations due to extensive media coverage and its impact on consumers’ behavior.54

53 On new possible strategies for the human rights movement, see Joseph, supra note 8, 151–52.

54 As an example of the move away from the “business as usual” attitude, see the case study

on Royal Dutch/Shell in Lothar Rieth & Melanie Zimmer, Transnational Corporations and

Confl ict Prevention: Th e Impact of Norms on Private Actors 19–29 (2004).

International Law Covered

Chapter One

Actionability Standards

I Introduction

ATS as codifi ed in 28 U.S.C § 1350 provides that district courts shall have

“jurisdiction of all suits brought by any alien for a tort only, in violation of the laws of nations or of a treaty of the United States.”1 Th erefore, the fi rst issue that a federal court deciding ATS claims needs to address is what standard should be employed to determine which torts are actionable under ATS Over the years, various standards with diff erent legal and practical implications for litigation against TNCs emerged and spread

Th is chapter examines the various proff ered standards in determining the torts which are implementable under ATS.2 Part II presents standards developed and shaped to carve out those norms of customary international

which are actionable under ATS in the aft ermath of the Filártiga v Peña-Irala 3

decision of the Court of Appeals for the Second Circuit.4 Part III determines

1 Oliver Ellsworth, the principal draft er of the Judiciary Act establishing a judicial federal system in the United States, formulated ATS in its draft with the following words: “[Th e district courts] shall also have cognizance, concurrent with the courts of the several States,

or the circuit courts, as the case may be, of all causes where a foreigner sues for a tort only

in violation of the law of nations or a treaty of the United States.” Th is clause was adopted

by the First Congress as part of the Judiciary Act, with one exception: the term “foreigner” was substituted by the term “alien” In ATS’s history, its wording was amended three times,

merely for aesthetic reasons Cf William R Casto, “Th e Federal Courts’ Protective

Jurisdic-tion over Torts Committed in ViolaJurisdic-tion of the Law of NaJurisdic-tions”, 18 Conn L Rev 467, 468

(1986) Th e current version of ATS emerged when the clause was integrated in 28 U.S.C

§ 1350 Cf id.

2 E.g., in the Unocal Case involving the construction of a gas pipeline in Myanmar by the

California-based Unocal Corporation, the company’s lawyers argued that ATS applies

exclu-sively to jus cogens See Doe v Unocal, 110 F Supp 2d 1294, 1304 (C.D Cal 2000) and II.C below On the further development of the case law from Filártiga to Sosa, see Beth Stephens

et al., International Human Rights Litigation in US Courts 48–54 (2008).

the guidance given to lower courts by the majority of the Supreme Court in

the case of Sosa v Alvarez-Machain.5

II Possible Standards to Determine Actionable Norms

Th e uncertainty over the exact meaning of ATS is fuelled by two facts First, the lack of legislative record over its passage: ATS was enacted in section 9

of the Judiciary Act of 1789 by the First Congress, and there is no reported discussion over it.6 Second, aft er its original enactment, ATS aft erwards lapsed largely into disuse for almost two centuries.7

A Customary International Law-Standard

In the case Abebe-Jira v Negewo involving the complaint of a victim of the

so-called “red terror” of the “Dergue” military dictatorship ruling Ethiopia

in the mid-1970s against one of her torturers, the Court of Appeals for the Eleventh Circuit went on to explain that it “read the statute as requiring

no more than an allegation of a violation of the law of nations in order to invoke § 1350.”8 Similarly, in its judgment in Xuncax v Gramajo involving

an action by citizens of Guatemala against their former Minister of Defense

in relation to injuries imposed by the military forces, the U.S district court for the District of Massachusetts stressed that “[a]ll the statute requires is that an alien plaintiff allege a ‘tort’ was committed ‘in violation’ of interna-tional law or a treaty of the United States.”9 Indeed, at fi rst sight, one may

be intuitively inclined to interpret ATS literally since the wording of ATS requires nothing more and nothing less than a violation of (a treaty or) the law of nations Under this view, every violation of customary international

constitutes a remarkable exception Disagreement exists, however, on which standard should

be employed to determine the torts actionable under ATS from those which are not See the

discussion under II Until the Supreme Court’s decision in Sosa v Alvarez-Machain, 124 S

Ct 2739 (2004), a myriad of diverging and complementary views on the appropriate criteria for the determination of which wrongs are open to litigation under ATS fl ourished.

5 124 S Ct 2739.

6 Peter Schuyler Black, “Kadic v Karadzic: Misinterpreting the Alien Tort Claims Act”, 31

Ga L Rev 281, 281–82 (1996) Its wording is indeterminate and provides only very little

guidance Black speaks of the “cryptic wording” of ATS Judge Friendly even remarked that

ATS is “a legal Lohengrin; no one seems to know whence it came.” ITT v Vencap, Ltd.,

519 F.2d 1001, 1015 (2d Cir 1975).

7 See Casto, supra note 1, at 467–68

8 72 F.3d 844, 847 (11th Cir 1996).

9 886 F Supp 162, 180 (D Mass 1995).

law, which is based on two constituent elements, state practice combined with

the conviction that the practice fl ows out of binding legal obligations (opinio

juris vel necessitatis), both of them being considered necessary to amount to

a binding rule,10 should be suffi cient.11 One may even argue that any other reading would amount to a refusal by the court to exercise jurisdiction and

a rejection of the purpose set by Congress in enacting the law.12 Yet, while this stance may be promising at fi rst sight, a second look gives rise to doubts One may ask, why would the First Congress have authorized suits in federal courts fi nanced by U.S taxpayers to allow, for example, the enforcement of regional customary international law in other parts of the world with no connection to the U.S and in respect of rules which were, in a comparable situation, not equally applicable to the U.S and its counterparts? Th e answer

to this question shows that a literal reading of the wording of ATS runs afoul And in practice, no single court, despite some rhetorical assertions such as in

Abebe or Xuncax, ever seriously considered the actionability of every single

norm of international law.13

10 See Rudolf Bernhardt, “Customary International Law”, in I (2) Encyclopedia of Public

Inter-national Law 898, 899 (Rudolf Bernhardt ed., 1992) Th e Restatement (Th ird) of the Foreign Relations Law of the United States (“Restatement”) defi nes customary international law as “a

general and consistent practice of states followed by them from a sense of legal obligation.”

Restatement, § 102(2) According to the comments, the objective element – state practice –

embraces “diplomatic acts and instructions as well as public measures and other governmental acts and offi cial statements of policy, whether they are unilateral or undertaken in coopera- tion with other states, for example, in organizations such as the Organization for Economic

Cooperation and Development” Id., § 102, comment (b) Even inaction can amount to practice of State if it constitutes acquiescence Id Th e activity must be “general and consis-

tent” although not universal Id As for the subjective element – opinio iuris sive necessitas –

the comment declares that “explicit evidence of a sense of legal obligation (e.g., by offi cial

statements) is not necessary; opinio juris may be inferred from acts or omissions.” Id.

11 Th is intuitive approach to the interpretation of ATS is also discernable in Judge Reinhardt’s

Concurring Opinion in Doe v Unocal Corp., 395 F.3d 932, 964 (9th Cir 2002) where he refuses to discuss the possible jus cogens status of forced labor under international law.

12 Th e duty to exercise jurisdiction is stressed in the opinion of Justice Edwards in Tel-Oren

v Libyan Arab Republic, 726 F.2d 774, 789–91 (D.C Cir 1984) saying that

to the extent that Judge Bork rejects the Filártiga construction of section 1350 because

it is contrary to his perception of the appropriate role of courts, I believe he is making

a determination better left to Congress It simply is not the role of a judge to construe

a statutory clause out of existence merely on the belief that Congress was ill-advised

in passing the statute If Congress determined that aliens should be permitted to bring actions in federal courts, only Congress is authorized to decide that those actions

“exacerbate tensions” and should not be heard.

13 In Abebe-Jira, 72 F.3d 844, as well as in Xuncax, 886 F Supp 162, plaintiff s alleged the most

severe human rights violations.

B Defi nable, Universal, and Obligatory-Standard

In the celebrated Filártiga v Peña-Irala decision, the Court of Appeals for

the Second Circuit neither took the position that every norm of customary international law should suffi ce to vest jurisdiction under ATS nor held that federal courts enjoy a broad discretion in fashioning new claims under ATS based on current-day international law norms Instead, it required:

It is only where the nations of the world have demonstrated that the wrong is mutual, and not merely of several concern, by means of express international accords, that a wrong generally recognized becomes an international law viola-tion within the meaning of the statute.14

Writing for the court, Judge Kaufman further stressed the need for sal renunciation in the modern usage and practice of nations”15 that the international wrong must “command the general assent of nations”,16 that

“univer-“no government has asserted a right to torture its own nationals”,17 and that the prohibition was “clear and unambiguous”.18 Moreover, it explained the historical fact of ATS’s neglect in litigation and jurisprudence on the grounds that plaintiff s in previous cases were unable to rely on “well-established, universally recognized norms of international law”.19 In doing so, while the Second Circuit did not explicitly rule on which specifi c torts fall within ATS,

it laid down a general framework as guidance for future ATS cases.20

In a frequently cited article published in the Harvard International Law

Journal, Jeff rey M Blum and Ralph G Steinhardt reviewed the Filártiga v

determine other rights actionable under ATS wherein the prohibited conduct must be (a) “defi nable and identifi able as a tort committed by individuals”; (b) “core norms must be textually obligatory”; and (c) “universal, so that dero-gations are not defended as ‘exercises of legitimate political diversity’.”22 Th e

Blum/Steinhardt test found its path into jurisprudence in the case Tel-Oren

v Libyan Arab Republic, a dispute decided by the Court of Appeals for the

District of Columbia in 1984 involving a massacre perpetrated by Palestine Liberation Organization members on bus passengers and passers-by on a highway to Tel Aviv in Israel.23 Aft er citing the article and Filártiga v Peña-

Irala, Judge Edwards declared that “commentators have begun to identify a

handful of heinous actions – each of which violates defi nable, universal and obligatory norms.”24 Th ree years later, in Forti v Suarez-Mason involving

claims against a former Argentine military general, Judge Jensen used this

formulation of the test pointing to Tel-Oren and Filártiga.25 Th us, a new test

to restrict the application of ATS was born

Since then, this standard became the most popular one followed by the great majority of the courts, inter alia, the Ninth Circuit.26 In eff ect, the standard

23 726 F.2d 774 Th e facts giving rise to the dispute are: In March 1978, 13 heavily armed members of the Palestine Liberation Organization (“PLO”) landed by boat in Israel and set

up a scenario of destruction along the highway connecting Haifa to Tel Aviv Th eir mission was to exercise pressure on the Israeli government to release PLO members incarcerated

in Israel In the pursuit of such goal, they seized two civilian buses, a taxi, and a passing car, took hostages, tortured, shot, and murdered passengers as well as passers-by When

fi nally stopped by a police barricade aft er a shoot-out with the police, the gunmen blew up themselves and the bus with grenades Th irty-six people, mainly Israelis, but also includ- ing Americans and a Dutch were killed, 12 of whom were children, and 87 people were wounded Th e plaintiff s, the survivors and the representatives of those murdered, fi led a suit

for compensatory and punitive damages in a federal district court Tel-Oren v Libyan Arab

Republic, 517 F Supp 542 (D.D.C 1981) Plaintiff s named as defendants the Libyan Arab

Republic, the PLO, the National Association of Arab Americans, and the Palestine Congress

of North America Th e district court dismissed the ATS claims against the PLO for lack of

subject matter jurisdiction and for being barred by the statute of limitations Id at 550–51

Th e court further held that the pleadings in regard of the Palestine Information Offi ce and the National Association of Arab Americans are too insubstantial and that jurisdiction over

Libya is barred by the Foreign Sovereign Immunities Act Id Accordingly, the case was

dismissed in toto.

24 726 F.2d at 781

25 Forti v Suarez-Mason, 672 F Supp 1531, 1539–40 (N.D Cal 1987) In Forti, an action

based on ATS was brought by two Argentinean citizens residing in the United States ing torture, murder, and arbitrary detention.

alleg-26 See In re Estate of Ferdinand Marcos, Human Rights Litigation, 25 F.3d 1467, 1475 (9th Cir

1994) However, the diff erence with those who proclaim that violations of international law in general should fall within the reach of ATS should not be overstated, particularly in terms of practical diff ering results Quite oft en, courts which rely on the stricter “defi nable,

universal and obligatory test” simultaneously refer to Restatement § 702, with the heading

“Customary International Law of Human Rights” See Tel-Oren, 726 F.2d at 781 Th is shows that the diff erence between the two standards is one of degree rather than of exclusivity.

Th e District Court for the District of Massachusetts in the above-mentioned Xuncax case,

held that the “qualifi cations essentially require that 1) no state condone the act in question

restricted ATS claims to serious and outrageous violations of international law.27

C Jus Cogens-Standard

Before the U.S Supreme Court rendered its decision in Sosa, the

develop-ment of ATS interpretation has not stopped at this point Some courts were willing to go further in erecting barriers to the application of ATS declaring

that only jus cogens norms are actionable.

Jus cogens norms take the fi rst, highest, and most prominent rank over all

rules of international law Th e Vienna Convention on the Law of Treaties refers to them as “a peremptory norm of general international law” defi ned as

“a norm accepted and recognized by the international community of States as

a whole as a norm from which no derogation is permitted and which can be modifi ed only by a subsequent norm of general international law having the same character.”28 Accordingly, by defi nition, States are bound by jus cogens

and there is a recognizable ‘universal’ consensus of prohibition against it; 2) there are

suf-fi cient criteria to determine whether a given action amounts to the prohibited act and thus violates the norm; 3) the prohibition against it is non-derogable and therefore binding at all times upon all actors.” 886 F Supp at 184 Th e last criterion shows that this court was

already willing to require jus cogens as a standard to determine torts under ATS.

For a more recent application of the Filartiga approach, cf Doe v Qi, 349 F Supp 2d

1258, 1277 (N.D Cal 2004); Doe v Rafael Saravia, 348 F Supp 2d 1112, 1144–45 (E.D Cal 2004); Villeda Aldana v Fresh Del Monte Produce, Inc., 305 F Supp 2d 1285, 1294 (S.D Fla 2003); Sarei v Rio Tinto PLC, 221 F Supp 2d 1116, 1131 (C.D Cal 2002); Wiwa

v Royal Dutch Petroleum Co., 2002 WL 319887 at 4 (S.D.N.Y 2002); Alejandre v Republic

of Cuba, 996 F Supp 1239, 1251 (S.D Fla 1997).

27 See infra the evaluation of ATS jurisprudence presented in Chapter Two: International

Criminal Law; Chapter Th ree: Civil and Political Rights; Chapter Four: Labor Standards; Chapter Five: Environmental Destruction.

28 Vienna Convention on the Law of Treaties, art 53, 23 May 1969, 1155 U.N.T.S 332, which provides:

A treaty is void if, at the time of its conclusion, it confl icts with a peremptory norm of general international law For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modifi ed only by a subsequent norm of general international law having the same character.

Th e wording suggests a positivist, as opposed to a natural law-based, understanding of the

concept of jus cogens since it requires recognition Restatement comment k to § 102 states

that “[s]ome rules of international law are recognized by the international community of states as peremptory, permitting no derogation Th ese rules prevail over and invalidate international agreements and other rules of international law in confl ict with them.”

even if they have not consented.29 In ATS litigation, the topos emerged from a

reading of the Siderman de Blakecase by later courts.30 In this case involving

an action against Argentina fi led by victims of the military junta that ruled the country aft er the overthrow of President Maria Estela Peron, the Ninth

Circuit classifi ed the proscription on torture as jus cogens norms.31 In Trajano

v Marcos, involving allegations of wrongful death against the daughter of

the former Philippine president, the Ninth Circuit approved the fi nding of the

district court that a violation of a jus cogens norm vests jurisdiction on the

courts under ATS.32 Although a mere dicta in the judgment’s last sentence,33

the judgment is open to an interpretation that only peremptory norms are actionable under ATS.34

D Wrongs Related to a Lawful Prize-Standard

In addition, legal literature has also added to the discussion on possible

stan-dards In his article A Tort Only in Violation of the Law of Nations, prominent

law professor Joseph Modeste Sweeney developed an equally narrow standard

like the one of jus cogens.35 Th e cornerstone of his conception is ATS’s stress

29 See Vienna Convention on the Law of Treaties, id.

30 Siderman de Blake v Republic of Argentina, 965 F.2d 699 (9th Cir 1992).

31 Id at 714 Th e circuit court reversed the district court’s judgment and remanded the case for further proceedings because it found the plaintiff s to have presented suffi cient evidence

of a waiver of Argentina’s immunity.

32 Trajano v Marcos (In re Estate of Ferdinand E Marcos Human Rights Litigation), 978 F.2d

493, 503 (9th Cir 1992)

33 Th e reason for this is that the real issue answered was whether ATS was a mere jurisdictional

statute not providing a cause of action, not even for jus cogens violations

34 See also the above-mentioned Xuncax case where the court required a norm “binding at

all times upon all actors” 886 F Supp at 184 More current pronouncements, however,

do not support this approach In Papa v United States, 281 F.3d 1004 (9th Cir 2002), the

Ninth Circuit held that a plaintiff must demonstrate a specifi c, universal, and obligatory

norm of international law as part of an ATS claim Id at 1013 Moreover, in Doe v Unocal

Corp., the Ninth Circuit further clarifi ed that a specifi c, universal, and obligatory norm is

actionable under ATS whether it amounts to jus cogens or not 395 F.3d at 945, n 15 See

also Xuncax, 886 F Supp at 184 (“binding at all times upon all actors”); National Coalition Government of the Union of Burma v Unocal, Inc., 176 F.R.D 329, 345 (C.D Cal 1997)

Th is interpretation would not bar ATS litigation against TNCs totally However, it would defi nitely restrict it substantially.

35 18 Hastings Int’l & Comp L Rev 445 (1991) Professor Sweeney himself admits the

provoca-tive nature of his reading and explains that he would not have pursued such a stony course

at an earlier stage of his academic career.

on the restriction on “all suits brought for a tort only”36 which he interprets against the background of the 18th century practice of prize law In his view, only wrongs related to a lawful prize are actionable under ATS.37

Historically, prize law is the branch of international law which is concerned with the capture of (enemy) property at sea, and sovereign States were permit-ted to capture enemy ships and cargoes.38 With regard to neutral nations, the right to capture implied the right to visit and search on the high seas all neutral merchant ships in order to verify the neutrality of the cargo and capture any cargo in case it could be assigned to enemy nations or nationals.39 However,

in the exercise of the right to visit under the law of prize, it was outlawed to

do injury to person or property aboard neutral ships.40 Such right to capture played a signifi cant role in the War of Revolution because aft er the Continental Congress granted authority to private merchants to operate armed ships to control the high seas and exercise the right to capture, American merchants willingly fi lled their pockets at the enemy’s expense as they were assigned the lion’s share of the profi ts.41

Aft er an impressively extensive and compound researchof cases on prize law, Professor Sweeney concludes that ATS merely applies to prize cases in which the legality of the prize as such is not an issue but wrongs committed in the course of such prize He puts ATS in a power-struggle between admiralty courts and state courts.42

Before the entry into force of the U.S Constitution in 1789, if the legality

of the capture was not an issue but the suit was only for damages based on wrongs related to the capture, Pennsylvanian courts asserted jurisdiction as common law courts based on the argument that in such an instance, there was

no prize dispute and thus, no admiralty court competent over the dispute.43

36 See the full wording of 28 U.S.C § 1350: “Th e district courts shall have jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”

37 Sweeney, supra note 35, passim

38 D.H.N Johnson, “Prize Law”, in III (2) Encyclopedia of Public International Law 1122 (Rudolf

Bernhardt ed., 2000) Naturally, prize law is irrelevant to the current business activities of TNCs.

39 Id at 1126 See generally Ondolf Rojahn, “Ships, Visit and Search”, in IV (1) Encyclopedia

of Public International Law 409 (Rudolf Bernhardt ed., 2000).

40 Sweeney, supra note 35, at 447.

41 In 1776, according to the United States Naval Academy, 2980 British vessels were captured during the WarFaculty of the United States Naval Academy American Sea Power since 1775 8 (Allan Westcott ed., 1947) cited in Sweeney, supra note 35, at 451.

42 Sweeney, supra note 35, at 482.

43 Id at 478–81.

According to Professor Sweeney, Oliver Ellsworth, the principal draft er

of the Judiciary Act of 1789 of which ATS historically formed part of, was well aware of this power struggle and did not want to challenge the holding

of the state courts in principle.44 However, in section 9 of the Judiciary Act,

he had assigned exclusive jurisdiction to federal courts in admiralty cases.45

Given the inherited law of England from which the mentioned state courts had deviated and which accorded all disputes incidental to a prize or capture

to admiralty courts, section 9 would have undermined the understanding of the Pennsylvanian courts.46

In Professor Sweeney’s view, Ellsworth did not want to contest the tence of common law courts of states when the suit was only for reparation in damages of a wrong related to a capture.47 Consequently, while he maintained exclusive federal jurisdiction over the legality of a capture as prize and over any claim for reparation in damages of a wrong related to the capture in the case, when the suit was “only” for the reparation in damages of a wrong related to a capture without questioning the legality of the capture as such,

compe-he planned to allow tcompe-he continuation of tcompe-he jurisdiction of tcompe-he (state) mon law courts over such a suit with the only exception in respect of suits brought by foreigners, in which case, federal courts should have concurrent jurisdiction under ATS.48

com-Th e immediate question that arises is why Ellsworth did not specifi cally formulate “tort in violation of the law of prize or a treaty of the United States dealing with prize” In response to this question, Professor Sweeney claims that at the time, no reason existed for Ellsworth to be so specifi c since the struggle between the courts on prize disputes must have been well-known to the members of the new Congress and only the law of prize as part of the law of nations provided for private causes of action at the time.49 In support

of his understanding, particularly with respect to ATS’s treaty alternative, Professor Sweeney points to four treaties of Amity and Commerce dealing with prize issues which were in eff ect in 1789 and which granted to aliens a private cause of action for the reparation of wrongs committed by Americans

in violation of the treaties.50

While Professor Sweeney’s approach is deeply embedded in the law of prize and well founded in the genesis of the American nation, it cannot be accepted